The Ninth U.S. Circuit
Court of Appeals yesterday upheld a ruling denying an advocacy group’s request
to intervene in a suit challenging the constitutionality of Proposition 8.

A three-judge panel
rejected an argument by the Campaign for California Families that proponents of
the 2008 ballot initiative currently defending the measure in federal court
would not adequately represent the group’s interests.

Writing for the court,
Judge M. Margaret McKeown said that “[d]ivergence of tactics and litigation
strategy is not tantamount to divergence over the ultimate objective of the
suit.”

Kristin Perry and several gay and
lesbian residents of California filed suit in May challenging the initiative on
due process and equal protection grounds after they were denied marriage
licenses because they were same-sex couples.

Approved last November,
Proposition 8 amended California’s Constitution to
provide that only marriages between a man and a woman are valid or recognized
in the state.

When the governor and
other officials declined to take a position on the suit, and the attorney
general agreed the initiative was unconstitutional, Chief U.S. District
Court Judge Vaughn R. Walker of the Northern District of California allowed the
ballot committee which pushed the initiative last fall to intervene to defend
it.

Advocacy Group

The Campaign for
California Families—a non-profit group which describes itself as “dedicated to
defending and representing the values of parents, grandparents and concerned
citizens who believe in family, faith and freedom”—then sought to intervene as
well, but Walker denied the motion.

He concluded the group
failed to show
that it had
a significantly protectable interest in the subject matter of the litigation,
that the disposition of the action might practically impair or impede the group’s
ability to protect its interest, or that the group’s interest was not
adequately represented by the existing parties to the action.

The campaign appealed,
but McKeown wrote that the group could not show inadequate representation by
the initiative proponents because the two shared the same “ultimate objective”:
defense of the constitutionality of Proposition 8 and the principle that the
traditional definition of marriage is the union of a man and a woman.

She said the proponents’
representation was presumptively adequate given the unity of interests, and
that the campaign’s contention that proponents would not make arguments the
campaign was prepared to make was not a “compelling showing” rebutting the
presumption.

The campaign argued that
the proponents had shown their willingness to stipulate to facts that “would
virtually establish, as a matter of law, that sexual orientation is a suspect
class.”

‘Unsupported Broadside’

However, McKeown, saying
the proponents’ performance so far “amply illustrates their intention to mount
a vigorous defense,” rejected the “sweeping allegations” as an “unsupported
broadside.”

She commented:

“Proponents have not
made concessions that would sell the Campaign down the river.”

McKeown criticized the
campaign for distorting the proponents’ position “in a number of respects.” She
noted that that the proponents had only shown a willingness to stipulate to
three facts the campaign would not have conceded out of 67 proposed by the
plaintiffs, and said “the real differences…boil down to strategy calls” which
did not justify intervention as a matter of right.

She also wrote that Walker did not abuse his
discretion in denying permissive intervention on the basis that allowing the
campaign to intervene might delay the proceedings.

Judges Pamela Ann Rymer
and N. Randy Smith joined McKeown in her opinion.

‘Helpful’ Information

Matthew Staver of
Liberty Counsel, which represented the campaign, said that even though the
court did not grant his client’s request he thought “the information that we’ve
put before the court is helpful for the defense of Proposition 8 for those that
are the proponents.”

He said his clients
would be filing an amicus brief putting forth “all the arguments why Proposition
8 should be upheld.”

Attorney Ted Olson—a
former U.S. solicitor general now
with Gibson, Dunn & Crutcher in Washington, D.C. who represents the plaintiffs along with
Matthew D. McGill—could not be reached for comment.

Attorneys for the
proponents of the ballot initiative—Charles J. Cooper and Howard C. Nielson of
Cooper and Kirk in Washington, D.C.—similarly could not be
reached for comment.